by Jacob Magri – Paralegal
Painting: “Cardinals Eavesdropping in the Vatican,” by Henri Adolphe Laissement, 1895
The criminal trial, like any other judicial process, is aimed at the search for the truth. Its outcome depends heavily on the evidence produced and the fact finder in a criminal trial must base his verdict on admitted evidence and any inference that may be logically drawn from the same. However, certain modes of obtaining evidence, which to the ordinary individual would be considered as valid for the ultimate discovery of the truth, are excluded and discarded as inadmissible in the juridical process. One type of such evidence; which is generally excluded as inadmissible in criminal proceedings, is hearsay evidence.
Simply put, hearsay evidence refers to that type of evidence tendered by a witness, whether oral or written, which is based on what has been reported to the witness by others rather than what he has observed or experienced himself, i.e. evidence that a witness does not have direct knowledge of, but rather, his testimony is based on what others have said to him.
The provision regulating hearsay evidence under Maltese law is found under Article 598 of the Code of Organisation and Civil Procedure, made applicable to criminal proceedings by virtue of Article 520(1)(d) and 645 of the Criminal Code, which reads as follows:
(1) As a rule, the court shall not consider any testimony respecting facts the knowledge of which the witness states to have obtained from the relation or information of third persons who can be produced to give evidence of such facts.
(2) The court may, either ex officio, or upon the objection of any party, rule out or disallow any question tending to elicit any such testimony.
(3) Nevertheless the court may require the witness to mention the person from whom he obtained knowledge of the facts to which any such question refers.
Although several ad hoc exceptions to this general exclusionary rule have been introduced, such rule has quite firmly and consistently been preserved in criminal cases and this for an apparent reason. When the life, liberty or at least reputation of an individual is at stake, it is certainly not just to be content with second-best evidence. The underlying notion is that a witness, although testifying under oath, should testify only about facts, which he/she has been directly exposed to and not on information obtained from third parties.
Several other reasons are given for the exclusion of hearsay evidence, the most convincing being those which spring from the general requirement that evidence must be taken in the form of direct, first-hand testimony given in public and under oath and in circumstances where it can be contested by cross-examination. The most prominent objections to the admissibility of hearsay evidence are perhaps that the original author of the statement was not oath when he made it and that there is absence of an opportunity to effectively cross-examine the true maker of the statement. Moreover, the exclusionary hearsay rule eliminates one very important source of possible error, that is; the repetitive retail of a story from one person to another, which in all probability will twist the sequence of facts as they truly occurred.
As indicated above, certain ad hoc exceptions to the exclusionary hearsay rule are at times admitted in the best interest of justice. Article 599 of the Code of Organisation and Civil Procedure, made applicable to criminal proceedings by virtue of Article 520(1)(d) and 645 of the Criminal Code, holds that:
“The court may, according to circumstances, allow and take into consideration any testimony on the relation of third persons, where such relation has of itself a material bearing on the subject-matter in issue or forms part thereof; or where such third persons cannot be produced to give evidence and the facts are such as cannot otherwise be fully proved …”
Therefore, exceptions to the hearsay rule may be admitted when for instance the true maker of a crucial and decisive statement is untraceable and therefore unavailable to personally testify in Court. This reasoning was affirmed in the Maltese judgment of Il-Pulizija v. Janis Caruana, delivered by the Court of Criminal Appeal (Inferior Jurisdiction) on the 14th of May 2012, per Hon. Mr. Justice Lawrence Quintano, wherein reference was made to the Constitutional Court judgment of Joseph Mary Vella et v. Il-Kummissarju tal-Pulizija, delivered on the 13th of January 1998, which held as follows:
“Issa, fil-każ preżenti, si tratta ta’ depożizzjoni ta’ xhud dwar x’qallu ħaddieħor li ma jistax jiġi prodott minħabba li x-xhud ġie marbut bis-sigriet professjonali fuq l-identita’ ta’ dan il-ħaddieħor. Ċertament il-klem ta’ dan il-ħaddieħor jistgħu, fiċ-ċirkostanzi tal-każ, ikollhom importanza sostanzjali fuq il-mertu tal-kawża. Għalhekk il-Qorti ma tara l-ebda raġuni l-għala għandha tiddipartixxi mill-konlużjoni tal-ewwel qorti (li tħalli lil dan ix-xhud jiddeponi).”
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